The Paul Truesdell Podcast

The Deadly Poison of NullificationHow the Selective Application of Justice Is Destroying the Republic and Why the Reckoning Will Be SevereBy Paul Grant Truesdell, JD, AIF1What We Are Witnessing Is Nullification and It Will Not End Well: A Warning From HistoryThere is a principle in American jurisprudence that most citizens never learn about in school, and for good reason. It is called jury nullification, and it occurs when jurors refuse to convict a defendant not because the evidence is insufficient, but because they disagree with the law itself or believe the prosecution is unjust. It is not written into statute. It is not encouraged by judges. But it exists, and it has been used throughout American history for purposes both noble and shameful.What we are witnessing in Minneapolis, in Portland, in Los Angeles, and in courtrooms across this nation is something adjacent to this principle but far more corrosive. We are seeing the selective application of justice based on political alignment. We are seeing prosecutors who decline to charge rioters while throwing the book at protesters on the other side. We are seeing juries that appear to render verdicts based not on evidence but on tribal loyalty. And we are seeing a significant portion of the American public cheering this on, apparently unaware that they are sawing off the branch they are sitting on.Let me be direct about something. I am generally aligned with conservative principles. I supported President Trump. I believe in law and order, border security, limited government, and the rights enumerated in our Constitution. But what I am about to say is not partisan cheerleading. It is a warning, and it applies to everyone regardless of which cable news channel they prefer.When you normalize the weaponization of the justice system against your political opponents, you are not winning. You are establishing a precedent. And precedents, once established, do not care about your intentions. They simply exist, waiting to be used by whoever holds power next.2The Great Triumvirate and the Death of Serious Political DiscourseBefore we examine the constitutional issues at stake, we need to understand something about the quality of political discourse in America and how far we have fallen from what we once were.In the early nineteenth century, the United States Senate was home to three men whose debates on the floor of that chamber are still studied today as examples of the highest form of political argument. They were called the Great Triumvirate, sometimes the Immortal Trio: Daniel Webster of Massachusetts, Henry Clay of Kentucky, and John C. Calhoun of South Carolina. These men disagreed on almost everything. They were political rivals. They represented fundamentally different visions of what America should become. And yet they engaged each other with a level of intellectual rigor, rhetorical skill, and mutual respect that would be unrecognizable in today's political environment.Daniel Webster was the great defender of the Union and the Constitution. His reply to Robert Hayne in 1830, in which he declared "Liberty and Union, now and forever, one and inseparable," is considered one of the greatest speeches in American history. Henry Clay was the Great Compromiser, the man who brokered the Missouri Compromise of 1820 and the Compromise of 1850, repeatedly stepping into the breach when sectional tensions threatened to tear the nation apart. John C. Calhoun was the brilliant theorist of states' rights and the most articulate defender of Southern interests, a man whose intellectual contributions to American political thought continue to be studied even as his defense of slavery is rightly condemned.These were serious men having serious debates about serious issues. They read deeply. They argued carefully. They understood that their words would be scrutinized by posterity. They believed that ideas mattered and that the outcome of their debates would shape the future of the Republic.Compare that to what passes for political discourse today. We have replaced the Lincoln-Douglas debates with Twitter feuds. We have replaced careful constitutional argument with sound bites and gotcha moments. We have politicians who cannot articulate the basic principles of their own positions, let alone engage thoughtfully with the positions of their opponents. We have a political class that treats governance as performance art rather than the serious business of managing a republic.This matters because the issues we face today are no less consequential than the issues faced by the Great Triumvirate. The questions of federal power, states' rights, the limits of government authority, and the protection of minority interests are as urgent now as they were in 1830. But we are trying to answer those questions with a political class that would have been laughed out of any nineteenth century debating society.3John C. Calhoun: The Democrat Who Created Modern NullificationTo understand the danger of what is happening today, we need to understand who John C. Calhoun was and what he actually argued, because his ideas are being resurrected in forms that their modern advocates apparently do not recognize.John Caldwell Calhoun was born in South Carolina in 1782 and died in Washington in 1850. He served as a member of the House of Representatives, Secretary of War under James Monroe, Vice President of the United States under both John Quincy Adams and Andrew Jackson, Secretary of State under John Tyler, and United States Senator from South Carolina. He was one of the most powerful and influential politicians of the nineteenth century.Here is the first thing you need to understand about Calhoun: he was a Democrat. He was not a Republican. The Republican Party did not exist during most of his career. Calhoun was a member of the Democratic-Republican Party and then the Democratic Party. He briefly aligned with something called the Nullifier Party during the Nullification Crisis, but he returned to the Democratic fold and remained a Democrat until his death.Here is the second thing you need to understand: Calhoun did not start out as a states' rights advocate. Early in his career, he was a nationalist. He supported a strong federal government. He supported protective tariffs. He supported internal improvements funded by the federal government. He was a war hawk who pushed for the War of 1812. As Secretary of War, he reorganized and modernized the War Department, expanding federal power in the process.Calhoun's transformation from nationalist to states' rights champion happened in the late 1820s, and the reason for that transformation was slavery. Calhoun came to believe that the growing power of the federal government, and the growing influence of the Northern states in that government, posed an existential threat to the institution of slavery. He developed his theories of nullification and states' rights specifically to protect Southern slavery from federal interference.This is important because it reveals the fundamental dishonesty at the heart of nullification doctrine. Calhoun did not arrive at his constitutional theories through neutral legal reasoning. He arrived at them because he needed a constitutional justification for protecting slavery. The theory was crafted to serve the interest, not the other way around.Here is the third thing you need to understand: Calhoun was an explicit and unapologetic defender of slavery. He did not argue, as some of his contemporaries did, that slavery was a necessary evil that would eventually fade away. He argued that slavery was, in his exact words, a positive good that benefited both slaves and enslavers. He owned dozens of slaves at his plantation, Fort Hill, in South Carolina. He dedicated the latter part of his career to expanding and defending the institution ...